Disciplinary Proceedings For Lawyer

Alejandre-Galegos v. Holder, 2015 WL 1346197 (3/26/15) (unpub'd) - This case is notable because the 10th instigates disciplinary proceedings, which could result in suspension from the court's bar and restitution, for the alien's lawyer, John Reardon, The 10th details many cases where it has found Mr. Reardon's work wanting, which the 10th has used against Mr. Reardon's clients. The 10th has described Mr. Reardon's arguments as "prolix, vague, unfocused, poorly developed, incoherent and without any substance."

Tenth Confuses Departure, Variance Standards

U.S. v. Sanchez-Fragoso, 2015 WL 1321388 (3/25/15) (N.M.) (unpub'd) - In this case, the 10th says a district court should vary downward based on a defendant's family circumstances "only in extraordinary circumstances," citing USSG § 5H1.6, which applies only to departures. The Supreme Court's decision in Gall v. U.S., 552 U.S. 38 (2007), may lead one to question this holding.

No Immigration Relief for Mexican Citizen Despite Horrific Circumstances

Garcia v. Holder, 2015 WL 1296494 (3/24/15) (unpub'd) - No asylum, restriction on removal, or removal withholding under the Convention Against Torture for this Mexican citizen, despite horrible things happening to him and his family in Mexico. Gang members killed his grandmother, stepfather and ten-year-old brother by running them over with trucks. Gang members beat Mr. Garcia with a hammer and told him not to come back to Mexico. He did not qualify for relief because he did not show: (1) Mexican society viewed as a distinct social group Mexican males who resisted gang recruitment; or (2) that a public official was aware of what gang members did to Mr. Garcia and Mr Garcia's family and breached his or her legal responsibility to intervene to prevent such activity [demonstrating the police investigations were inadequate was not enough].

Certain Aliens Must Be Detained by ICE Without Bond Hearing

Olmos v. Holder, 1296598 (3/24/15) (Col.) (Published) - The AG must detain certain inadmissible or deportable aliens listed in 8 U.S.C. 1226(c) without a bond hearing after they are released from a prison or jail, even if there is a gap between release from prison or jail and detention by ICE. The 10th found the statute to be ambiguous in this regard. It could mean the government must detain those folks only when they are immediately taken into ICE custody or it could mean they must detain the aliens any time after release as well. The 10th goes through a fascinating exploration of statutory construction considerations: grammatical structure, legislative history; how subsections were referred to in other parts of the statute; paragraph structure; policy; and "flush language" [this has nothing to do with toilets, just whether the words begin at the left margin or not]. The canon of constitutional avoidance and lenity have no bearing on the issue in this case because if the statute is ambiguous then the 10th must defer to the BIA's reading of the statute, not to one that favors the alien or the constitution. In any event, mandatory detention of someone who was free for 6 days after release from prison, as in this case, didn't seem unconstitutional to the 10th. And the AG has a continued duty to detain these particular kinds of aliens even if they have been free for awhile. Missing the deadline for detaining the alien doesn't remove that duty.

Later Events Not Considered in Review of Denial of Continuance; Defendant Opened Door to Prejudicial Evidence

U.S. v. Seymour, 2015 WL 1383111 (3/27/15) (Wyo.) (unpub'd) - A cautionary preservation tale. The 10th reviews the continuance denial at the time of the denial. which was before trial. It refuses to consider matters that came up during trial because the defense did not renew its motion for a continuance in light of trial events.

In an enticement-of-a-minor case, Mr. Seymour opened the door to evidence that child-porn-type search terms and deleted child porn files were on his computer. Mr. Seymour testified he went along with the undercover agent posing as a father offering his 12-year-old daughter for sex because he was acting as a vigilante to rescue the girl. Others testified to his history of intervening to save vulnerable people and animals from harm, e.g. rape, beatings. The 10th rules Mr. Seymour put a character trait of protecting vulnerable folks at issue justifying the government countering under Fed. R. Evid. 404(a)(2).with evidence that Mr. Seymour was sexually interested in children. The government's counter evidence indicated Mr. Seymour was interested in sexual gratification, not protecting the imaginary girl. The government had no obligation to provide pretrial notice of the evidence, given the plain language of 404(a)(2). The evidence did not violate Fed. R. Evid. 403, given its probative value. Perhaps helpfully in a case where the government wants to introduce a video, the 10th says introducing a child porn video that was on Mr. Seymour's computer would have been much more inflammatory than what the government presented in this case.

There was sufficient evidence of a 924(c) offense--carrying a firearm during and in relation to a crime of violence. Enticement is a crime of violence. Mr. Seymour was "carrying" a gun by having it in his car when he went to the park to meet the girl. It didn't matter if Mr. Seymour routinely carried a gun in his console. It was "perfectly" reasonable for a juror to infer he brought the gun with him to subdue the child.

Defendants Lacked Standing to Object to Car Search

U.S. v. Ocegueda, 2015 WL 1322855 (3/25/15) (Ut.) (unpub'd) - A motion to suppress evidence found as the result of a car search fails on standing grounds. Neither the driver nor the passenger had title to the car. There was no evidence the legal owner conveyed a possessory interest to either one. Nor were the defendants able to show their arrests lead directly or indirectly to the search.

Removal Reinstatement Order Not Final While Other Proceedings Continue

una-Garcia v. Holder, 2015 WL 534839 (2/10/15) (unpub'd) - The 10th issues a ruling that essentially both parties wanted. The 10th holds that in immigration proceedings a removal reinstatement order is not final until ongoing reasonable fear proceedings are complete. Ms. Luna-Garcia appealed her removal order before immigration authorities finished deciding if she had a reasonable fear of returning to Guatemala. She was afraid she would lose her right to challenge the order if she waited for her reasonable fear proceedings to conclude. But the 10th held it had no jurisdiction to consider her case until the reasonable fear proceedings had concluded, due to the lack of finality.

Habeas Barriers Don't Fall for Innocent Defendants

U.S. v. Zaler, 2015 WL 573957 (2/11/15) Col.) (unpub'd) - Actual innocence cannot overcome the prodigious barriers AEDPA has built to relief for successive petitions. The Supreme Court's McQuiggen case allowed for innocence to overcome statute of limitations issues for first petitions only. The 10th gives no grace to innocent folks who had the audacity to file a previous petition.

Helpful Decision on Restitution; Sprint Not Entitled to Retail Value of Fraudulently Acquired Phones

U.S. v. Ferdman, 2015 WL 619629 (2/13/15) (N.M.) (Published) - Important restitution case: Mr. Ferdman pleaded guilty to acquiring some phones from Sprint by impersonating corporate account representatives after getting the corporations' account information. Sprint, the government and ultimately the judge believed restitution should be the retail, unsubsidized price of 86 cell phones, not just the cost of the phones to Sprint, plus Sprint's shipping and investigative costs. The 10th held there was an insufficient evidentiary basis for that conclusion because restitution may only equal the actual loss of the victim, not all the padding (unjust enrichment) Sprint would get under the judge's ruling. While the 10th did not rule out that a theft victim might be entitled to lost profits from lost retail sales in some cases, for that to happen there must be some evidence the defendant's theft in fact caused the victim to lose retail sales. Sprint presented no such evidence, only a 2-page, unverified letter, like a bill, concerning the retail price and other costs. But it did not show, for example, that it lost any sales because people bought Mr. Ferdman's phones instead of Sprint's or that Sprint didn't have enough phones on hand to sell other customers because of the theft. Absent such proof, something like replacement or wholesale cost is the better measure of actual loss. Plus Sprint's estimates of its investigation expenses supported by an unverified signature of a Sprint officer didn't amount to proof of actual loss. The 10th's reasoning in this regard might prove the most valuable of all for the future. The 10th said:"the likelihood that certain facts exist to confirm the estimates, no matter how probable, does not relieve the government of its burden to establish their actuality." There must be actual evidence of how each employee's time was spent pursuing the investigation in this case.

Other helpful things the court said. Loss under the Guidelines is not the same as actual loss for restitution purposes. The district court should not be a "rubber stamp" of the victim's claims. Some precision is required to determine actual loss, not speculation. If the court is uncertain, it should ask for more information or hold a hearing, but restitution unsupported by evidence "is not an option." Restitution should not include consequential or incidental damages because restitution awards are not a substitute for civil lawsuits. The 10th observed that maybe Paroline v, U.S., 134 S. Ct. 1710 (2014), the child-porn restitution case, called into question the 10th's precedent that restitution is remedial, not punitive. In Paroline, the Court explained that restitution does serve punitive purposes. This has implications for the application of Apprendi and the Ex Post Facto Clause, etc. on restitution decisions. Finally, another excellent quote:: "Undoubtedly the Mandatory Victims' Restitution Act's (MVRA's) overriding purpose is to assure that district courts fully compensate victims for actual losses they suffer. But that must not deter us from reading the MVRA as Congress wrote it and, more particularly, from requiring some proof of the actual loss that a defendant caused the victim."

Upward Departure Based on Old, Dissimilar Conduct Affirmed

U.S. v. Mangum, 2015 WL 670187 (2/18/15) (Ut.) (unpub'd) - It was permissible for the district court to consider evidence, not supported by a conviction, that Mr. Mangum sexually assaulted minors outside the 15-year window and, based on that evidence, to depart upward under USSG § 4A1.3(a)(2) for Mr. Mangum's felon-in-possession offense that involved an assault. It doesn't matter that the alleged offenses did not fit any of the categories listed under § 4A1.3(a)(2) that would justify an upward departure for under-representation of criminal history. So here, even though the sexual assaults did not constitute "similar" conduct to the instant offense under § 4A1.3(a)(2)(E), the judge could depart upward based on them anyway. The list of five upward departure bases under § 4A1.3(a)(2) is not an exclusive list. The 10th concedes that, if the district court said it was relying specifically on § 4A1.3(a)(2)(E), the 10th might have spun the sentence.

Tenth Emphasizes Enforceability of Appeal Waivers

U.S, Garcia-Ramirez, 2015 WL 676802 (2/18/15) (Col.) (Published) - The 10th publishes this 3-page decision to make sure defendants don't avoid appeal waivers based on a misinterpretation of its decision in U.S. v. Black, 773 F.3d 1113 (10th Cir. 2014). The defense tried to take advantage of Black to overcome an appeal waiver. In Black, the 10th bypassed resolving the appeal waiver issue and addressed the merits because the waiver issue was relatively complex, the government briefed the merits and the merits issue was really easily decided against the defendant. It would be wrong, the 10th holds, to grant relief to a defendant without resolving the appeal waiver issue. Otherwise, the government would lose the benefit of the waiver. So, since Mr. Garcia-Ramirez didn't establish he could avoid the waiver under U.S. v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc), his appeal was dismissed.

Cop Leaving Out Exculpatory Statement in Affidavit Was Not A Franks Violation

Puller v. Baca, 2015 WL 1285283 (3/20/15) (Col.) (Published) - In a § 1983 case, the 10th finds probable cause and no Franks violation. There had been a series of assaults by a group of African-American gang members targeting, attacking and robbing intoxicated white men near closing time of downtown bars in Denver. A witness told police about one of these attacks where someone yelled "Get that white boy." A witness said that Mr. Puller was part of this group and accompanied the group to the home of a woman who had used the victim's credit card. In an affidavit seeking a warrant to arrest Mr. Puller for a race-based assault, the officer did not mention that when he asked one witness, who was a little tipsy at the time of the attack, whether Mr. Puller was involved in the fight, she responded: "no, his grandma would kill him." The 10th was uncertain why the officer omitted that statement, but "believed" the omission was at worst negligent. In any event, the statement was not an unequivocal denial of Mr. Puller's presence. And, in any event, even in light of the omitted information, there was enough for probable cause that Mr. Puller was part of the group that approached the victim. Approaching was enough to help intimidate the victim and shield the physical attackers from view. By approaching Mr. Puller was not merely present. He acted affirmatively.

Sentencing Enhancements in Drug Case Affirmed

U.S. v. Palacios, 2015 WL 1245466 (3/19/15) (Okl.) (unpub'd) - Mr. Palacios's guilty plea to maintaining drug-involved premises leads to hefty enhancements. By admitting to the offense and also facilitating distribution by accepting drug money for a drug dealer on one occasion, he could be held responsible for his gun and all the drugs found in his house when it was raided, even though he was "nowhere near" the house at that time. He could be held accountable for any reasonably foreseeable activities engaged in by others at the house, including for the gun that was found in the same location where drugs and drug paraphernalia were stored.

Good Faith Saves Warrantless GPS Search; LEO Testimony About Mexican Meth Labs Supported Enhancement for Importation

US v. Hohn, Docket No. 14-3030 (April 1, 2015) (unpublished): Mr. Hohn objected to the evidence obtained by the warrantless attachment of a battery-operated GPS unit to his car. The officers testified they thought a battery-operated unit did not require a warrant, while a hard-wired unit did. The district court denied the motion, saying that even if the warrantless search was unreasonable, the officers acted in good faith. Accordingly, the motion to suppress was denied. The Tenth agreed. Officers could have reasonably relied on US v. Knotts, 460 US 276 (1983), and US v. Karo, 468 US 705 (1984), to believe that a battery operated GPS unit could be attached to defendant's car without a warrant.

In another search, Defendant's truck was searched when it was parked at a residence in which Mr. Hohn lived. The warrant was for the residence. The warrant for the residence was sufficient to allow a search of any vehicle actually or apparently owned by long-term residents of the premises.

It was ok for the government to use a composite photo of all the alleged co-conspirators for purposes of identifying them, especially since Mr. Hohn declined a limiting instruction.

The court also properly denied a motion for mistrial where (after evidence of this unrelated shoot-out was excluded pretrial) a witness inadvertently identified names in a notebook as "names of people involved in a shoot-out in Kingdom City." The judge's curative actions -- including talking to each juror individually and instructing them to disregard the statement -- was sufficient.

The two-level enhancement for "imported drugs" was supported by the evidence at sentencing. The fact that trial witnesses testified that the meth distributed in the conspiracy was obtained from individuals of Mexican origin or descent would not have been enough. However, in addition a sheriff's deputy testified the meth was of Mexican origin because meth is manufactured in larger quantities in Mexico than in the US, in Mexican "super labs"; Mexican meth is purer than US meth; and when meth is imported from Mexico, it is cut with a filler before distribution and this meth had been cut.

Restitution, Sentence Affirmed for Fraudulent Coin Dealer

US v. Burg, Docket No. 14-1211 (10th Cir. April 1, 2015) (unpublished). The Tenth affirms the 90-month sentence and $2,464,099 restitution order for a self-proclaimed "Christian coin dealer" who said on his website "My motto is 'honesty and fairness' and you can't ask for more." Amazingly, the 41 people who ordered from him expected to receive coins. He took the money but generally failed to provide the coins. He also did not file tax returns (well, in a few years he filed the documents, but with zeros in all the spaces, so the IRS considered them to not be filed). The district court was unsympathetic to his claims of poor health and expressions of remorse, and sentenced him to the 78 months for the fraud and 12 months consecutive for the tax counts, resulting in 90 months total.

Deputy Working as Mall Cop Denied Qualified Immunity for Forcible Takedown of Teen

Cook v. Peters, 2015 WL 1089267 (3/13/15) (Okl.) (unpub'd) - The 10th affirms a denial of summary judgment in an excessive-force, § 1983 suit. As he left a shopping mall, Mr Cook, a slight teenage boy, cursed at a deputy sheriff working as a security guard. The officer, who was 11 inches taller and 200 pounds heavier than Mr. Cook, arrested Mr. Cook. Mr. Cook tried to pull away, The officer took him down to the ground. Given the difference in sizes, the minimal threat the teenager posed to anyone and the minor nature of the teenager's crime (breach of the peace through the use of profane language), the law was clearly established that the forceful takedown would be excessive force in violation of the Fourth Amendment . No qualified immunity in that circumstance.

Colorado Conviction for Possessing Child Porn Is An Aggravated Felony

Serrato-Navarrete v. Holder, 2015 WL 1037309 (3/11/15) (unpub'd) - The 10th holds a violation of Colorado's child-porn-possession statute is an aggravated felony. An offense is an aggravated felony if it is child porn as described in 18 U.S.C. § 2252(a)(4)(B), which refers to depictions of a minor "engaging in" sexually explicit conduct. The Colorado statute criminalizes possession of material depicting a minor "engaging in, participating in, observing, or being used for" sexually explicit conduct. The 10th finds the verbs beyond "engaging in," such as "observing" are superfluous since they just describe the same things that are included in the "engaging in" in § 2252. In particular the 10th says a minor observing explicit sexual conduct is being "involved in and associated with" that activity, which is what "engaging in" means.

Two-Year Pretrial Detention Not a Speedy Trial Violation

U.S. v. Taylor, 2015 WL 1020605 (3/10/15) (Kan.) (unpub'd) - The 10th affirms the pretrial detention of a cocaine defendant who has been detained for two years. The 10th holds that 18 U.S.C. § 3164(b), which requires release after 90 days of detention, was not violated because the Speedy Trial Act excluded from the 90 days the 7-month government-requested, ends-of-justice continuance of the trial date. It was held against Mr Taylor that he waited to file his motion to suppress wiretap evidence from a jurisdiction other than the jurisdiction of the state court that issued the wiretap authorization until the last day he was allowed to. [Is there any other day you can file a motion?] It was okay that the government didn't start looking at what wiretap evidence it could present at trial until after the district court granted Mr. Taylor's suppression motion. It couldn't possibly anticipate the motion or, of all things, the granting of that motion. This was a complicated, multi-defendant case, the 10th says. And besides Mr. Taylor didn't "use all available means to secure an immediate trial," not even saying that he wanted such a thing. Nor was due process violated. The 10th recognized two years was a "lengthy" detention, but most of the delay was attributable to the defense with its "numerous pretrial motions" and "last-minute" filing of a motion to suppress. And there's that complexity and large number of defendants as well.

One Enhancement Reversed, One Affirmed in Drug Case

U.S. v. Henderson, 2015 WL 1059847 (3/11/15) (Okl.) (unpub'd) - A two-level enhancement under § 2D1.1(b)(1) for possessing a firearm during a drug offense was improper under U.S. v. Castro-Perez, 749 F.3d 1209 (10th Cir. 2014), where there was no physical relation between the weapon and the drug trafficking activity. The informant (CI) inquired about buying meth during the CI's purchase of a firearm. But the drug offense for which Mr. Henderson was convicted occurred months before. On the other hand, the enhancement under § 2D1.1(b)(12) for maintaining a residence for drug trafficking was supported by sufficient evidence. It didn't matter that no "tools of the trade" were found in the home. Agents witnessed "multiple parties" entering and exiting the residence in a manner consistent with drug trafficking [perhaps they skipped, rather than sauntered] and the CI bought drugs at or near the house 3 times. Although the "premises was used as a residence, the drug trafficking activities were frequent and substantial enough to warrant the enhancement." The district court was aware that it had to compare the amount of legitimate activities going on to the illegitimate ones.

APD Officers Get Partial Qualified Immunity in Backpack Sting Case

Quinn v. Young, 2015 WL 1089573 (3/13/15) (N.M.) (Published) - On qualified immunity grounds, the 10th turns aside part of a § 1983 suit involving the larceny stings Albuquerque Police were involved in for a while. The officers planted a backpack with cigarettes, beer and a laptop computer near an ATM. A couple with a young boy picked up the backpack and took it to a diner. An officer found out no one had called about an abandoned backpack. While the man ordered a hamburger, the woman opened the laptop, which displayed the APD icon. The adults were arrested and kept in jail for two days after which the charges were dismissed. The 10th emphasizes law enforcement officers are given a "wide berth" when it comes to determining if there's probable cause for an arrest. The critical question is whether the officers had enough to believe the couple had the intent to permanently deprive the owner of property that was not abandoned. The 10th rules that the officers didn't have fair warning there was no probable cause because there are no cases out there concerning a larceny sting operation. The 10th stresses there was more likely to be probable cause than in typical non-sting circumstances because the officers knew the couple knew they were not the true owners of the backpack. This is one reason non-sting cases did not set out clearly established law in the sting context. the district court, the 10th holds, evaluated the matter at too high a level of generality. General probable cause cases don't provide sufficient warning. To add insult to injury, the 10th cites an opinion by another division of the district coutrt with respect to the same sting operation and says: "That thorough, well-reasoned opinion" is how you're supposed to address the issue." Judge Vazquez found there was no probable cause, but found qualified immunity applied. The 10th remands the malicious prosecution and substantive due process claims for reconsideration because the district court did not explain why it rejected those claims. By not ruling on whether there was or was not probable cause the 10th gives officers no guidance and thus allows them to go about their sting business with impunity.

Asylum Seeker Failed to Show Membership in Socially Distinct Group

Rodas-Orellana v. Holder, 2015 WL 859566 (3/2/15) (Published) - Mr. Rodas-Orellana failed to demonstrate his proposed group---El Salvadoran males threatened and actively recruited by gangs, who resist joining because they oppose the gangs---is a socially distinct group. So he could not show he was entitled to asylum or withholding from removal due to persecution based on his membership in that group.

Tenth Reverses Grant of Habeas Relief to Arabic Speaker

Al-Yousif v. Trani, 2015 WL 968432 (3/6/15) (Col.) (Published) - The 10th reverses a habeas grant based on the petitioner's inability to understand his Miranda rights. Mr. Al-Yousif is from Saudi Arabia and his primary language is Arabic. An expert testified that Mr. Al-Yousif had limited English proficiency and had not understood his rights. Others testified he would nod and say he understood when he didn't. He read at a fifth-grade level of English, while Miranda rights require a 7th-grade level for a native speaker to understand. Before the interrogation, an officer briskly went through the rights, while holding the rights form in a way that Mr. Al-Yousif could not read along, and Mr. Al-Yousif nodded and indicated he understood. After the officer told him he could not have his uncle present, he provided some inculpatory statements. He later lead them to a dumpster containing the body of the murder victim. After another Miranda advisement, Mr. Al-Yousif asked for an attorney. The Colorado trial court suppressed the statements. But the state supreme court reversed, holding that the trial court required a deeper understanding of the implications of a waiver than Colorado law did. A suspect need only understand that: (1) he did not have to talk; (2) he could have an attorney present; and (3) if he did talk, the statements could be used against him. Whether he understood the tactical significance of the waiver was irrelevant. After reviewing the video of the interrogation, the state's highest court concluded the waiver was knowing and voluntary, The 10th presumed that finding to be correct and found Mr. Al-Yousif had not presented clear and convincing evidence to overturn it. The 10th found the state court had considered the totality of the circumstances. The 10th says: "two trial judges agreed with the petitioner, but the highest state court did not." So tough luck.

The 10th didn't have to get into the merits because it also held the petition was untimely. Equitable tolling was inappropriate, the 10th rules. Mr. Al-Yousif's habeas attorney had determined the supreme court rehearing denial on direct appeal was entered three days after it was actually entered. The attorney based that determination on the date on the document the state gave to the attorney. That document reflected when the state trial court received notice of the rehearing denial. The 10th says the attorney should have been able to figure out the actual date of the denial from available sources. It was even on Westlaw!

Unpublished Decisions

U.S. v. Becknell, 2015 WL 874398 (3/3/15) (Kan.) (unpub'd) - The 10th holds it would be reversible error in violation of Federal Rule of Evidence 704(b) for an expert to testify that a defendant in a § 924(c)(1)(A) case possessed a firearm "in furtherance of" a crime. But in this case where, as the 10th described it, the officer expert "did everything but state that inference," there is no error. The prosecutor asked the officer "expert" to discuss some of the factors he considers in determining whether a person possesses a firearm in furtherance of a drug trafficking crime. The officer detailed a description of those various factors and then immediately described the facts of the case tracking those factors. So the officer "came close to dictating the final conclusion to the jury," but still left to the jury the ultimate finding of fact, the 10th says.

The 10th doubts that the informant's information alone, which was related in a search warrant affidavit, would be sufficient to establish probable cause where the affidavit didn't discuss the informant's reliability. But, in this case, the trash searches and traffic seen at the house suggesting drug sales were enough to corroborate the informant's tip.

U.S. v. Engles, 2015 WL 896316 (3/4/15) (Okl.) (unpub'd) - Mr. Engles, a sex offender, accompanied his live-in girlfriend to her daughter's high school to update the daughter's emergency contact form to include Mr. Engles' address and to add Mr. Engles as a person authorized to pick the daughter up from school. Someone at the school recognized Mr. Engles as a sex offender. He ended up being convicted of the state offense of "loitering" at a school, which sex offenders are not allowed to do. A jury convicted him, despite his contention that he was not loitering because he was at the school for a particular purpose. His appeal is pending in state court. Meanwhile the feds kicked into gear. The district court revoked his supervised release due to his conviction and sentenced him to the high-end of the guideline range, 13 months. The 10th held it could not do anything about the unfairness of the Oklahoma conviction. That was a matter that could only be rectified in state court.

U.S. v. Evans, 2015 WL 874516 (3/3/15) (Col.) (unpub'd) - USSG § 4B1.5(b)'s enhancement for pattern of activity involving sexual conduct applied to two separate instances of producing child-porn videos, even though those activities occurred within the time frame of the indictment to which Mr. Evans pleaded guilty. Application note 4(B)(ii) makes it clear that the two separate incidents may constitute a "pattern" even if the only "pattern" is conduct involved in the offense of conviction.

Jones v. Heimgartner, 2015 WL 873057 (3/3/15) (Kan.) (unpub'd) - A procedural victory for a prisoner. Mr. Jones filed a § 2254 petition in 2012. This was almost 10 years after his state conviction became final. He contended his 2012 petition was timely because it related back to a § 2254 petition that he filed in 2003. The federal court had no record of receiving that petition. The district court dismissed the 2012 petition on the grounds that a petitioner must provide some substantiation of having sent the 2003 petition. Mr. Jones' sworn declaration that he sent it was not enough. The 10th reversed, holding that there is no additional proof requirement for petitions that never reach the federal court as opposed to those that are delayed and eventually reach the court. In each circumstance, the district court must make a factual determination whether the petitioner sent the petition by a certain date or didn't. It couldn't add a new corroboration requirement.

Speedy Trial Act Victory for Defendant

U.S. v. Hicks, 2015 WL 968423 (3/6/15) (Col.) (Published) - A Speedy Trial Act defense victory. After the district court ruled on all pretrial motions, the government filed a motion for a conference to set a trial date. The district court did not rule on that motion for almost two months. It then set the conference for two months later. The 10th holds that only 30 days were excludable due to the government's motion, which was a pro forma or administrative motion, because a hearing was not necessary to decide the motion. The motion was "under advisement" when it was filed. It only required a simple administrative act, regardless of how complicated the matters would be at the conference, especially since the defense had agreed with everything asserted in the motion at a prior hearing.

On the other hand, Mr. Hicks's constitutional speedy trial rights were not violated. (1) The length of the delay, five and a half years favored Mr. Hicks, but all the other Barker v. Wingo factors weighed against him. (2) He was responsible for much of the delay since he filed more than 40 "unique" motions, including several for extensions of deadlines and for a delay until his state prosecution was concluded. The government's part of the delay resulted from relatively benign reasons of negligence and a crowded court docket. (3) Mr. Hicks first asserted his rights near the beginning of the proceedings, but did not renew that claim until more than 3 years later. He asked for many continuances and didn't oppose most of the government's continuance requests. So the assertion factor did not favor Mr. Hicks. (4) As for the prejudice factor, a six year delay might lead to a presumption of prejudice, but only if all of that delay was solely attributable to the government. Here Mr. Hicks was responsible for much of the delay. He couldn't complain about oppressive pretrial incarceration because he was also being held on charges pending in state court. He showed no special harm from anxiety. He didn't specify what evidence he lost due to the delay. So no prejudice was shown that the 10th is willing to recognize. On balance no constitutional violation.

911 call did not violate confrontation rights; constructive amendment argument rejected

U.S. v. Edwards, 2015 WL 1296624 (3/24/15) (OK): Edwards was convicted of possession with intent to distribute methamphetamine. On appeal he raised three issues: (1) an anonymous 911 call that mentioned him by name should not have been admitted because it violated the Confrontation Clause; (2) the trial evidence and jury instructions that allowed his conviction as a principal constructively amended the indictment; and (3) the jury instruction on aiding and abetting omitted an essential element. Addressing each of these issues in turn, the panel ruled that the 911 call was admitted only to explain why the government began its investigation. The court told the jury it could use that call only for that purpose and not for the truth of any matter asserted in the call. Even assuming the court shouldn’t have let the jury hear the call that error was harmless because the evidence against Edwards was “quite damning.” Regarding Edwards’ constructive amendment argument, the panel said only if it found that the indictment was insufficient to charge him in the alternative as a principal could it rule that the indictment was constructively amended. Since the indictment sufficiently charged him as an aider and abettor and as a principal, Edwards’ argument was without merit: the indictment charged Edwards and his co-defendant Washington with “aiding and abetting one another.” The panel interpreted this phrase to mean that the grand jury believed Edwards could have committed the substantive offense by (a) aiding and abetting Washington, making Washington the principal; (b) Washington aiding and abetting Edwards, making Edwards the principal or (c) both Edwards and Washington possessing the methamphetamine with the intent to distribute it which made them both principals and aiders and abettors. Finally, the panel found the jury instructions were correct statements of the law. Even though the instructions did not follow the circuit’s pattern instructions (“district courts are by no means required to follow pattern instructions verbatim”), they correctly instructed the jury on the elements of the substantive offense and aiding and abetting.

Defendant may seek safety-valve relief at sentencing on remand

U.S. v. Figueroa-Labrada, 2015 WL 1296563 (3/24/15) (OK): In Figueroa, the panel decided as a matter of first impression that § 3553(f)’s safety-valve is available to an accused, who did not cooperate or seek safety-valve relief prior to his initial sentencing hearing, but instead sought to satisfy the safety-valve requirements for the first time on remand before his resentencing. Using the plain text of § 3553(f), the panel concluded that when an accused gives information to the government for the first time on remand, but before the resentencing hearing, a district court must consider that information in determining his eligibility for a safety-valve sentence. The panel also found that the district court’s error was not harmless.

A case to put in the ‘reciprocal sauce’ folder.

U.S. v. Huff, 2015 WL 1639520 (4/15/2015) (KS) (published): The district court granted Huff’s motion to suppress because the officers did not have probable cause to believe he had committed or was committing a crime when they took him out of his car and arrested him. But the court changed its mind after the government filed a motion to reconsider. The government said that it now could point to a specific municipal ordinance Huff had violated when the officers took him out of the car. Huff said the court couldn’t reconsider its decision because the government could have told the court of that ordinance earlier. Unpersuaded, the court reconsidered its decision and denied the motion to suppress. On appeal Huff argued the court should not have considered the government’s reconsideration motion. The panel acknowledged that the government did not have a valid excuse for not making the local ordinance argument earlier. In some circuits, like the 11th and D.C., the government would have been out of luck. However, the panel said, it would not be fair to punish the officers for their righteous arrest when it was the prosecutor or the court that made the error. It didn’t matter if the officers had the specific ordinance in mind when they arrested Huff. The district court could consider and grant the government’s reconsideration motion because ultimately what mattered was that the officers had probable cause to arrest Huff.

Practice tip: When you want to add arguments to a motion the court just denied, file a motion to reconsider and point out that it would undermine the constitutional rights of all, your client included, if law enforcement (or the prosecutor) were allowed to get away with what they did. If nothing else those arguments should be preserved for appeal.

Court Rejects Assertion that IRS Is Not A Government Agency

U.S. v. Carpenter, 2015 WL 399904 (1/30/15) (Okl.) (unpub'd) - The 10th rejects Mr. Carpenter's claim that his tax fraud conviction should be overturned because the IRS is really a private corporation based in Puerto Rico, rather than a federal government agency.

Defense Counsel's Attempt to Bribe Victim's Mother Did Not Warrant Habeas Relief

Shue v. Hargett, 2015 WL 4009306 (2/2/15) (Wyo.) (unpub'd) - Mr. Shue's public defender offered the mother of the victim $15,000 from a $250,000 settlement Mr. Shue had just received in exchange for her recommendation of a suspended sentence. Instead of accepting the offer, the ungrateful mother told the prosecutor about the bribe attempt. The public defender was fired, but Mr Shue hired him for the sentencing. The unethical conduct the lawyer engaged in did not warrant habeas relief because there was no proof that that conduct affected the sentence, where the court promised it would not consider the bribe.

Prisoner's Civil Rights Case Remanded for Trial

Miller v. Kastelic, 2015 WL 480354 (2/6/15) (Col.) (unpub'd) - The 10th overturns a grant of summary judgment to the prison defendants in a § 1983 case. Mr. Miller provided sufficient evidence to demonstrate a triable issue as to whether officers knew he was facing a substantial risk of serious harm in the following circumstances: members of the 211 gang learned that Mr. Miller was a sex offender; that gang is known for their actions against sex offenders; they tried to extort canteen items from Mr. Miller; Mr. Miller notified guards of the threat; Mr. Miller was told it would take a few days to transfer him to a different unit; when he returned to his cell after talking to the guards, his canteen items had been stolen; he told a captain about the intimidation; the captain said: "There are no protected units here, if you refuse your assigned room, I'll put you in seg and file charges against you"; "I'll be assaulted if I return to my cell," Mr. Miller said; "Man up," the captain responded; Mr. Miller was then assaulted after he returned to his cell. Mr. Miller didn't just express general concerns to the captain. He gave specific warnings. So relief is possible.

Equal Protection Claim Not Preserved

U.S. v. Magallon-Maldonado, 2015 WL 452319 (2/4/15) (Kan.) (unpub'd) - The defense did not preserve an equal-protection challenge by arguing in the district court that giving Hispanic co-conspirators more severe sentences than the non-Hispanic conspirators violated § 3553(a)(6) [the anti-disparity factor]. The same legal theory must be presented below, not a theory that falls under the same general category as the issue on appeal. On appeal Mr. Magallon-Maldonado argued the court should have required the government to explain the disparate treatment. But any such error was not plain because there was no law imposing such a requirement except in the Batson context and, besides, at oral argument defense counsel admitted with "commendable candor" that any error wouldn't be plain.

No Sentencing Relief for Mentally Ill Man in Gun Case

U.S. v. Chapman, 2015 WL 427547 (2/3/15) (Col.) (unpub'd) - At the age of 7, Mr. Chapman witnessed a gang rape and murder his mom. Mental health issues and convictions ensued. When he moved from California to Denver, he ran out of psych medication because of a delay in getting an appointment with a mental health agency. He began having hallucinations and then acted erratically, drawing the attention of officers who found him in possession of a gun. His guideline range was 51 to 63 months. At sentencing the district court said: "If I were a judge in a different country, in the European Union, I would be able to sentence this man to treatment in a hospital, which is where he should be. I couldn't go to sleep worrying about this case." In the good ol' USA, the judge sent Mr. Chapman to prison for 46 months. This was a substantively reasonable sentence in deference to the lower court, the 10th rules.

Denial of Motion to Suppress Affirmed

U.S. v. Valdez-Perea, 2015 WL 399970 (1/30/15) (N.M.) (unpub'd) - Affirmance of suppression denial in a case involving DEA Agent Jay Perry at a Greyhound bus station. Oddly the tape did not pick up Ms. Valdez-Perea's consent. Rather, she evidenced her consent by nodding her head and standing up and lifting her arms 90 degrees. Agent Perrry's conduct was just like the officers in U.S. v. Drayton, 536 U.S. 194 (2002), where the Court held the officers had not seized the bus passengers they encountered. Drayton settles the voluntariness-of-consent question as well as the seizure question, the 10th holds. The district court could rely on Ms. Valdez-Perea's knowledge of the drug enterprise to deny a minor role adjustment.

Officers Used Excessive Force by Tasering Ill Patient

Aldaba v. Pickens, 2015 Wl 451227 (2/4/15) (Okl.) (Published) - An excessive-force decision in favor of a §1983 civil rights plaintiff. The 10th found the evidence in the light most favorable to the estate was sufficient to prove an excessive force violation that was clearly established. Mr. Lejia went to the hospital due to his pneumonia. After awhile at the hospital, his pneumonia caused low oxygen levels which affected his brain. Soon he became aggressive. He disconnected his oxygen and declared himself Superman and God. He refused medication to make him calm. He began walking down the hall. Medical personnel told arriving officers that Mr. Lejia could die if he left the hospital. The officers told him to get on his knees or they would taser him, but he didn't cooperate. An officer fired a taser that hit Mr. Lejia's torso. A struggle ensued. The officers thrust him face-first against a wall. Another taser, this time to the back of the shoulder. An officer tripped Mr. Lejia and they all fell to the floor with Mr. Lejia landing face-down. This allowed a nurse to inject Haldol and Ativan. But Mr. Lejia went limp, grunted, vomited and died.

In this kind of circumstance an additional governmental; interest comes into play: keeping a mentally disturbed person from harming himself. But with that interest comes extra responsibility. The governmental interest in using force is diminished by the fact that the person has committed no crime and poses only a threat to himself. Where officers know, as in this case, that the person has special characteristics making him more susceptible to harm from a particular use of force, officers should be especially sensitive to the likelihood of harm from use of force. In this case, the officers should have made a greater effort to take control with less intrusive means. The situation "called for conflict resolution and de-escalation, not confrontation and tasers." Importantly, the 10th thought the evidence could support the notion that Mr. Lejia only passively resisted.

Judge Phillips dissented, believing that, even in the light most favorable to the plaintiff, Mr. Lejia was actively resisting. The judge could not figure out what the officers should have done instead of what they did; conflict resolution and de-escalation didn't seem to be an option.

LPR Found Eligible for Waiver of Inadmissibility

Medina-Rosales v. Holder, 2015 WL 756345 (2/24/15) (Published) - The 10th with an alien-friendly ruling. The decision doesn't start out so friendly because the 10th holds that uncertain 10th Circuit law applies rather than 5th Circuit law, which says lawful permanent residents who acquire their status after living in the U.S. are eligible for a waiver of inadmissibility under § 1182(h). Mr. Medina-Rosales was found in Tulsa (the 10th) and was in Tulsa while the immigration judge was in Dallas (the 5th) by video-conferencing. But the 10th ends up agreeing with the 5th. The relevant statute says a person "lawfully admitted for permanent residence." is ineligible for the waiver. The 10th, in conflict with a number of other circuits, finds this refers only to those who obtained their LPR status before or at the time of their entry. The 10th says this doesn't make sense policy-wise, but the plain language is the plain language. That Congress may not have foreseen all the consequences of its statute is not a sufficient reason for refusing to give effect to its plain meaning, the 10th reasons.

Shuttling Between Federal Districts OK

DeWilliams v. Garcia, 2015 WL 756643 (2/24/15) (Col.) (unpub'd) -The Interstate Agreement on Detainers Act anti-shuttling provision did not apply to Mr. DeWillliams because he was only shuttled between federal districts. The federal government is considered a single jurisdiction.

Plaintiff Loses Malicious Prosecution Suit; Circumstances Supported Probable Cause Child Abuse Had Occurred

Tiscareno v. Frasier, 2015 WL 735668 (2/23/15) (Ut.) (unpub'd) - In a malicious prosecution lawsuit, there was probable cause that Ms. Tiscareno, a daycare worker, abused a one-year-old boy where: 4 doctors believed medical evidence indicated brain bleeding began in the boy when he was in Ms. Toscareno's sole care; some doctors thought the cause was shaking; the boy was in seemingly good health when he was dropped off; Ms. Tiscareno told police she shook the boy to try to revive him. Probable cause would have existed regardless of Dr. Frasier's allegedly fabricated medical opinions and the pathology report that indicated there had been brain bleeding before Ms. Tiscareno took over care. And no recovery for a Brady violation where the pathology report was not produced for the first trial, which ended in a guilty verdict, but was available after the district court granted a new trial and the second trial resulted in an acquittal. Brady relief only arises upon conviction and the trial court never entered a judgment of conviction. And, as for the private hospital which had the pathology report, there was no clearly established obligation to disclose the pathology report. While the hospital could have expected the Brady obligation to extend to law enforcement, thanks to Smith v. N.M. Department of Corrections case and Pierce v. Gilchrist, , it had no reason to believe it would extend to private hospitals under contract with the state. Pierce involved a chemist working with the police and Smith involved officers acting as arms of the state. Neither involved the obligation of a private hospital to help in an investigation related to its primary function of providing healthcare.

Circumstances Supported Reasonable Suspicion of Dangerousness

U.S. v. Marquez, 2015 WL 756703 (2/24/15) (Kan.) (unpub'd) - There was reasonable suspicion of an offense and that Mr. Marquez was dangerous and might gain immediate control of a weapon under the following circumstances. As officers signalled for Mr. Marquez to stop for the offense of expired tags, Mr. Marquez made a "jerking" motion indicating to the officer that he was trying to hide something. As the officers approached the stopped truck, the passenger stuffed an item in between the seat cushions. They were in a "high-crime" area after midnight, and Mr. Marquez admitted he was on parole for a firearms violation. Michigan v. Long, 463 U.S. 1032 (1983), which permitted such a search of the truck was not abrogated by Arizona v. Gant, 556 U.S. 332 (2009), which put limits on when officers can search a vehicle after arresting a driver.

The district court did not err when it denied Mr. Marquez's motion to disqualify the entire U.S. Attorney's office because he had previously burglarized the home of an AUSA in the district and the AUSA asked for a much harsher sentence for Mr. Marquez than the prosecutor in the case. All that the office needed to do was make sure the particular AUSA had nothing to do with the case. Mr. Marquez's plea negotiations were not affected since the office already had a policy of not offering pleas to stolen firearms charges in lieu of a felon-in-possession conviction.

Seifert v. Unified Government of Wyandotte County

Seifert v. Unified Government of Wyandotte County, 2015 WL 846208 (2/27/15) (Kan.) (Published) - Some helpful stuff about Giglio in the midst of a case about a police officer's lawsuit. Officer Seifert alleged that the law enforcement community retaliated against him for testifying on behalf of a defendant in a criminal case and then on behalf of that man in his suit against the police, where an officer had caused a traffic accident and then beat up the driver who was the victim. One reason the county and the sheriff's officers gave for forcing him to retire was a federal court order more than ten years old finding Officer Seifert had lied in court. They said this would be Giglio material that could be used to undermine his credibility if he had to testify in federal court. The 10th found a reasonable person could view this explanation as dubious since the order would not be admissible because it would be extrinsic evidence inadmissible under Rule 608(b), which would mean the cross-examiner asking about the order would be stuck with whatever answer Officer Seifert gave, even a denial. But see U.S. v. Williamson, 699 F.3d 1188 (10th Cir. 2012), which says kind of the opposite, but is not mentioned by the 10th here. Plus the order was so old a federal judge might not allow any cross-examination about it at all. For this and other reasons, the cause was remanded for trial.

Sentencing-related Publications Released

The Sentencing Commission has released the 2014 Annual Report & Sourcebook of Federal Sentencing Statistics, available here. The annual report provides an overview of the Commission's activities over the past year. The Sourcebook contains numerous charts and tables analyzing federal defendants, guidelines applications, cases according to federal district, and other information.

The Commission also issued a new data sheet, "Quick Facts: Theft, Property Destruction, and Fraud Offenses," available here. The release provides information about offenders and sentences under the fraud guidelines.

The Sentencing Project has also released its 2014 Annual Report, available here. The Report documents the Sentencing Project's contributions to the national debate on mass incarceration and racial inequities in the criminal justice system.